Unpublished Disposition, 874 F.2d 817 (9th Cir. 1988)

MEMORANDUM^* 

Flores appeals the conviction he received for violating 21 U.S.C. § 841(a) (1), for possession of over 500 grams of a Schedule II controlled substance, cocaine, with the intent to distribute. We affirm the district court on all points. The essential facts and proceedings below are stated in United States v. Castro, No. 88-3044, decided today.

The majority of Flores's arguments are the same as those made by Castro and are analyzed in the disposition of that case. We here set out only the contentions that Flores made individually:

First. During oral argument, Flores's attorney repeatedly asserted that the district court erred by refusing to instruct the jury that the crime charged was a specific intent crime. This contention is wholly without merit. An examination of the excerpt of record provided by the same attorney shows that Instruction No. 19 advised the jury that, in order to establish the offense charged against the defendants, the prosecution must prove beyond a reasonable doubt that the defendants possessed the cocaine "with a specific intent to distribute" it.

Second. Flores contends that the trial court erred by denying the Flores's motion to sever. We review a district court's denial of a motion for severance for abuse of discretion. United States v. Burgess, 791 F.2d 676, 678 (9th Cir. 1986). We must determine whether "joinder was so prejudicial that the trial judge was compelled to exercise his discretion to sever." United States v. Lewis, 787 F.2d 1318, 1321 (9th Cir. 1986). The burden is on the defendant to show such prejudice. Id. The prejudice must be such as to violate the defendant's fair trial rights, e.g., by making full cross-examination unavailable, preventing the opportunity to present an individual defense, failing to allow separate counsel for defendants with conflicting interests, or failing to instruct the jury properly on the admissibility of evidence as to each defendant. United States v. Douglass, 780 F.2d 1472, 1478 (9th Cir. 1986).

Flores argues that because the two defendants had been subject to identical indictments but had individual, mutually inconsistent defenses, each defense counsel in effect prosecuted the other defendant. The argument is conclusory and fails to meet the burden required by law for reversing the district court. Flores's contention must therefore be rejected.

Third. Flores contends that the trial court erred by denying his motion to dismiss for violation of Speedy Trial Act. The Speedy Trial Act, 18 U.S.C. § 3161(c) (1), provides that when a defendant pleads not guilty, the trial will commence within 70 days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which the charge is pending, whichever occurs later. We review a district court's determination of factual issues under the Act for clear error, and review questions of the application of law de novo. United States v. Feldman, 788 F.2d 544, 547-48 (9th Cir. 1986). A district court's determination that the ends of justice are served by a continuance will not be disturbed unless clearly erroneous. United States v. Perez-Reveles, 715 F.2d 1348, 1351 n. 2 (9th Cir. 1983).

Flores concedes that the speedy trial clock began to run on the filing date of his indictment, July 22, 1987. Section 3161(h) (1) (F) provides that delay resulting from the filing of a pretrial motion shall be excludible from the computation of time for purposes of the act. Motions filed on August 7, 1987 were decided on October 2, 1987.

Section 3161(h) (8) (A) provides that delay resulting from a continuance granted at the request of the defendant shall be excludible from the computation of time for purposes of the act. The trial was scheduled to begin on October 5, 1987, but was continued to November 23, 1987, by request of Flores's counsel. A trial date of January 11, 1988 was eventually set.

Flores's counsel and the government agree that the following calculation of time is appropriate:

July 23Aug 6 = 15 days

October 3, 4 = 2 days

Nov 23Jan 11 = 49 days